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The Process Is the Punishment

Carissa Byrne Hessick makes the case that American justice has drifted so far from its constitutional moorings that it is undermining our fundamental right to due process. Photo: Grant Halverson ’93

The jury trial is a staple of American culture, from Norman Rockwell paintings and 12 Angry Men to the O.J. Simpson trial and Court TV. But real life is nothing like Law & Order, because the majority of criminal defendants will never see the inside of a courtroom, according to UNC Law Professor Carissa Byrne Hessick.

“The modern criminal justice system is so much different than people think,” Hessick said. “People assume that if you get accused of a crime, you’ll get your day in court to try and prove your innocence.” Not only is that rare, Hessick explained, “but because we pressure so many people into plea bargaining, we’ve set up a system that almost presumes guilt for anyone charged with a crime.”

In Punishment Without Trial: Why Plea Bargaining Is a Bad Deal, released last fall, Hessick makes the case that American justice has drifted so far from its constitutional moorings that it is undermining our fundamental right to due process. Criminal codes have proliferated, prison sentences have become longer, and even simple trials are now expensive and time consuming. The majority of people charged with a crime plead guilty rather than face the uncertain and costly gauntlet of a trial. According to The Marshall Project, a nonprofit news outlet that focuses on criminal justice, 94 percent of state-level felony convictions and 97 percent of convictions at the federal level are secured through plea bargains, not trials.

Even misdemeanor defendants can spend months in jail awaiting trial or be called to court a dozen times for procedural hearings before a trial begins. Hessick’s book paints a vivid picture of why an innocent person might make the rational decision to plead guilty.

“Efficiency has warped the criminal process so that it no longer looks like something that an ordinary American would recognize as the system we learned about in school — a system in which you are innocent until proven guilty beyond a reasonable doubt,” Hessick writes. “We need to make it more difficult for the government to punish people without trials.”

Hessick said high-profile criminal trials, the kind that earn hours of cable news coverage and front-page headlines, give people a skewed perception of the justice system. Those trials are exceptions to the plea-bargaining rule precisely because they’re so high profile, offering defendants the kind of drawn-out court proceedings that make for gripping television — but don’t resemble the rushed, coercive reality for most Americans charged with a crime.

As an example, Hessick cited the trial of lifestyle guru Martha Stewart, who was accused of insider trading after she allegedly dumped stock in the pharmaceutical company ImClone Systems Inc. after an illegal tip. Federal prosecutors handled Stewart’s case very differently than they handled the case of ImClone CEO Samuel Waksal, Hessick said.

Waksal took a plea deal and never stood in front of a jury, while the famous Stewart went through a weekslong trial. “They held her to a different standard knowing that everything that happened was going to be in the paper,” Hessick said. “Her trial was, by design, exceptional.”


“We don’t have transparency as a matter of practice. It’s incredibly difficult for people to get their hands on information about prosecutors and their campaigns, and that’s a problem.”
—Carissa Hessick


Because they hide the reality of criminal justice for most defendants, plea bargains are subjected to little public scrutiny. “The system of plea bargains dictated by prosecutors is the product of largely secret negotiations behind closed doors in the prosecutor’s office, and is subject to almost no review, either internally or by the courts,” wrote former federal judge Jed Rakoff in a 2014 essay for The New York Review of Books.

Rakoff, who served as a federal prosecutor before becoming a judge, wrote today’s system bears no resemblance to the jury trials that the Constitution’s framers envisioned, allowing prosecutors to “preside over a plea-bargaining system that is so secretive and without rules that we do not even know whether or not it operates in an arbitrary manner.”

Hessick is convinced plea bargaining is plenty arbitrary, with the fate of most defendants determined solely by the whims of a prosecuting attorney. One of her main goals in writing the book and launching the Prosecutors and Politics Project at UNC Law, a research initiative focused on the political influence of prosecutors, is to shine light on the people who make life-altering judgments about how to charge defendants and what kind of deals to offer.

The United States is unique in having elected prosecutors in many jurisdictions, and yet voters have little information about them — including disclosures about donations to prosecutors’ political campaigns — when deciding whom they want to dispense justice on behalf of the state.

Hessick’s project team has collected data on campaign contributions to prosecutors, including donations from law enforcement groups. It compiled a report on how prosecutors lobby state lawmakers for harsher statutes and greater discretion over how they bring charges, changes that can bring even more leverage against defendants in the plea-bargaining process.

Much of that information was hard to come by, Hessick said, requiring research assistants to spend hundreds of hours searching for documents and cajoling state and local officials for access to records.

Hessick said transparency is a key safeguard against corruption, but “we don’t have transparency as a matter of practice. It’s incredibly difficult for people to get their hands on information about prosecutors and their campaigns, and that’s a problem.” Greater oversight of prosecutors should be a bipartisan issue, Hessick said, appealing to both reform-minded progressives and constitutional conservatives.

Hessick was raised in a working-class household and is the first lawyer in her family. She said she wanted Punishment Without Trial to be an easy read for people without legal expertise. The book includes original research, but it also has richly reported stories and interviews with prosecutors, public defenders, judges and former defendants active in the criminal justice reform movement.

“I think it’s our responsibility to speak to the public to say, ‘This system simply doesn’t work the way you think it does,’ ” Hessick said.

— Eric Johnson ’08

 

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